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Time beats anti-death-penalty drum

By Mark Obbie

Reacting to Richard Lacayo's story in Time -- a story declaring that "The Tide Shifts Against the Death Penalty" -- Sentencing Law and Policy blogger Doug Berman calls the timing "interesting." And he doesn't mean that as a compliment. Berman, an oft-quoted expert, wrote:Translated: This is not only old news -- it's outdated. At first I thought Berman was being a bit harsh. As evidence that the retreat from the death penalty has slowed or reversed, he cites a recent uptick in executions and pro-death-penalty legislation in Virginia. He also points to the appointment of Eric Holder as U.S. attorney general -- because Holder's tenure in the Justice Department during the Clinton years coincided with the death penalty's high-water mark. Seems like a stretch. I was ready to award the debating points to Time, which after all is a mainstream magazine for the general public, not for the Doug Bermans of the legal world. Lacayo made a pretty clear case that the long-term trend has been toward fewer executions and narrower laws allowing for capital punishment -- recent blips in the stats notwithstanding. Sure, Time may be late to the party, but is that a capital offense?Then I looked at the Time archives -- which the magazine helpfully provides adjacent to the Lacayo piece -- where Time had already proclaimed the decline of the death penalty. At least twice. Last December, writer Hilary Hylton reported on a slowing of death penalty verdicts in Texas (without noting whether murder rates have anything to do with that), and placed that squarely in the context of a national consensus away from capital punishment. A year earlier, David Von Drehle sounded the same trend-alert in a story pegged to New Jersey's statutory repeal of the death penalty (and where, interestingly, Von Drehle said Maryland death penalty foes had the same goal and were "within a few votes of success" -- the same supposed development that Lacayo pegged his new story to). And last April, Von Drehle took what might be called a positive by death penalty supporters -- the Supreme Court's rejection of a constitutional challenge to lethal injection methods, and the lifting of a de facto moratorium on executions -- and turned it into a negative by emphasizing the Court's lack of unanimity. It was, he implied, another death knell for the death penalty.And then comes Lacayo's new story. Add to this mix Lacayo's complete reliance on death penalty foes as sources, and what do you have? A bad case of trend-hyping. Why? Take your pick:Laziness. The writer simply failed to dig deeper -- among experts, and in Time's own archives -- for evidence that this wasn't new or wasn't universally believed.Bias. Maybe not the conspiratorial kind, but where the writer sees and emphasizes what rings true to him -- regardless of facts and nuances he might have discovered, and regardless of his magazine's previous "discovery" of this trend. At least twice.Normally I'd commend a newsmagazine for persistent coverage of an important topic, even if some of its stories seem obvious to insiders. But this time, I can only wonder -- alongside Berman -- why Time thought to do this story, in this way, now.

Full post as published by Lawbeat on February 04, 2009 (boomark / email).